On November 14, 2004, following 39 hours of contentious debate on several nominees, the Senate voted 43-53 (4 senators did not vote) against cloture which would have ended the filibuster against the nomination of Justice Janice Rogers Brown to the DC Circuit Court of Appeals. A vote of 60 is required to end debate. Justice Brown’s nomination expired at the end of the 108th Congress in December 2004; however, in January 2005, President Bush announced his intention to renominate her for consideration by the new Congress. Justice Brown has a record of judicial extremism that threatens reproductive and other civil rights and makes her poor choice for the most important circuit court of appeals in the country. NCJW opposes Brown’s confirmation.


Who is Justice Janice Rogers Brown?

  • Janice Rogers Brown was born in 1949 in Greenville, AL and moved to California as a child. She obtained a BA in 1974 from California State University and a JD from the University of California School of Law in 1977. She is currently enrolled at the University of Virginia School of Law and expects to earn an LLM degree in 2004.
  • From 1977 to 1979 she was in military service in the Legislative Counsel Bureau.
  • Justice Brown served as Deputy Legislative Counsel in the Attorney General’s Office of the California Department of Justice from 1979 to 1987. She became Deputy Attorney General of California in 1987, and 1990 she became Deputy Secretary and General Counsel for the state’s Business, Transportation, and Housing Agency.
  • In 1991, Justice Brown became a senior associate at Nielsen, Merksamer, Parinello, Mueller & Naylor, where she was employed until 1994.
  • In 1995, Justice Brown became Legal Affairs Secretary in the office of California Governor Pete Wilson. He appointed her Associate Justice for the California Court of Appeals for the Third District in 1998, and in 1999 she was appointed an Associate Justice of California Supreme Court.
  • Since 1996, Judge Brown has also been an adjunct professor at the McGeorge School of Law, University of the Pacific.
      Why does NCJW oppose Justice Brown's confirmation?

  • Justice Brown’s legal philosophy as embodied in her opinions on the California Supreme Court would roll back fundamental rights and constitutional protections that are the bedrock of modern jurisprudence in the areas of reproductive rights, race discrimination, and disability law, among others. Her opinions reveal a legal extremism and ideological approach to law that make her a poor choice for the most important federal circuit court of appeals in the country.
  • Justice Brown dissented in American Academy of Pediatrics v. Lungren, where a plurality of the California Supreme Court struck down a California law that required parental consent for minors seeking abortions. The decision was based on the explicit privacy protections of the California State Constitution. Justice Brown, contradicting her usual view that state laws and constitutions should trump federal law, held that the more limited privacy rights of the US Constitution invalidated the California constitutional provision. She excoriated the plurality, writing that the plurality’s legal approach allows courts to “topple every cultural icon, to dismiss all societal values, and to become final arbiters of traditional morality.” She also cited “legal materials” from unidentified “outside proponents of the bill” as if they were evidence of legislative intent in order to buttress her position. In fact, the legal materials were contained in an analysis prepared by a group that operates hundreds of anti-choice crisis pregnancy centers.
  • In several instances Justice Brown has written in opposition to claims made by victims of race discrimination. She once claimed that a 135-year old federal bank law pre-empted a claim of discrimination made by a bank employee, an assertion rejected by the majority of the court. She has contended that the state employment and housing commission should not be able to award damages for emotional distress to victims of race and other discrimination. In another dissent, she maintained that the First Amendment protects racially discriminatory speech against Latino employees in the workplace, even when such speech created a hostile work environment, and also claimed that Title VII of the 1964 Civil Rights Act (which bars employment discrimination) could violate the First Amendment.
  • In a disability rights case, Brown wrote that a victim of continuing discrimination should have been forced to sue separately concerning each discriminatory act rather than rely instead on four years of discriminatory conduct for evidence. She has asserted, in a dissent, that victims of discrimination based on disability should not be able to bring lawsuits for relief under California common law. In a similar dissent she even argued that it had not been shown that a public policy against age discrimination ‘inures to the benefit of the public’ or is ‘fundamental and substantial.’
  • Justice Brown appears to reject the modern legal framework that expanded the role of the federal government in protecting citizens against arbitrary action or inaction by state governments. Her ideology is best summed up in a speech to the Federalist Society, in which she criticized what she called the “Revolution of 1937” – a period when the Supreme Court upheld New Deal legislation against legal attack – as a “disaster” that marked “the triumph of our socialist revolution.”
  • Justice Brown has been rated “qualified/not qualified” by the American Bar Association’s committee on the federal judiciary . The rating means that a majority found her qualified, a minority found her unqualified and no one on the 15-member committee found her highly qualified, according to the Associated Press. She is the first of President Bush’s nominations to receive the low rating. When Justice Brown was first appointed to the California Supreme Court, she was found “not qualified” by the State Bar Committee on Judicial Nominees Evaluation. They raised concerns that she was insensitive to established precedent, lacked compassion and tolerance for opposing views, and was prone to inserting conservative personal views into her appellate opinions, in addition to her inexperience.

Who else opposes Justice Brown?

Alliance for Justice
Alliance for Retired Americans
American Federation of State, County and Municipal Employees
Americans for Democratic Action
Americans United for Separation of Church and State
Congressional Black Caucus
Delta Sigma Theta Sorority, Inc.
Feminist Majority
Leadership Conference on Civil Rights
Mexican American Legal Defense and Educational Fund
NAACP Legal Defense & Educational Fund, Inc.
NARAL Pro-Choice America
National Abortion Federation
National Association for the Advancement of Colored People
National Bar Association
National Family Planning and Reproductive Health Association
National Organization for Women
National Partnership for Women and Families
National Resources Defense Council
National Senior Citizens Law Center
NOW – Legal Defense and Education Fund
People For the American Way
Planned Parenthood Federation of America
Progressive Jewish Alliance
Sexuality Information and Education Council of the United States
Sierra Club
Religious Coalition for Reproductive Choice

Additional Information:

November 12, 2003
NCJW Denounces Senate Marathon Session on Judicial Nominations

October 23, 2003
NCJW to Oppose Confirmation of Janice Rogers Brown to DC Circuit Court of Appeals